SpaceX HLS Contract Gets Protection in Revised Senate Bill

The Senate will take up the United States Innovation and Competition Act today. It incorporates the 2021 NASA Authorization Act approved by the Senate Commerce Committee last week, but one of the most controversial provisions was modified and now provides a level of protection for the contract awarded to SpaceX for the Artemis program’s Human Landing System (HLS). It also extends the deadline for NASA to comply with a requirement that it choose a second HLS contractor.

The NASA authorization act was made part of the Endless Frontier Act (S. 1260) when the “Cantwell_1 (as modified)” amendment was adopted by voice vote on May 12 during markup by the Senate Commerce, Science, and Transportation Committee. Sen. Maria Cantwell (D-WA) chairs the committee.

As approved by the committee, one section of the bill required NASA to “maintain competitiveness” within the HLS program by funding design, development, testing and evaluation “for not fewer than 2 entities.”

NASA chose only one company, SpaceX, for an HLS contract even though it originally wanted two because of funding constraints. The committee-approved bill gave the agency just 30 days after the bill was enacted into law to pick a second contractor.

Three companies bid for the contract. The other two, Blue Origin (with Lockheed Martin, Northrop Grumman and Draper) and Dynetics, are protesting the award.  The Government Accountability Office (GAO) has until August 4, 2021 to make a ruling.  NASA suspended work on the contract until the matter is decided.

Blue Origin is headquartered in Kent, Washington. Because Cantwell represents Washington, the bill’s language is widely viewed as favoring that company in particular.

Between May 12 and yesterday’s release of the version of S. 1260 that will be considered by the Senate, now renamed the U.S. Innovation and Competition Act, two important changes were made to the HLS section.

The 30 days was extended to 60 days, but more significantly a clause was added directing NASA not to change or terminate the selection already made.

(5) Savings.–The Administrator shall not, in order to comply with the obligations referred to in paragraph (1), modify, terminate or rescind any selection decisions or awards made under the human landing system program that were announced prior to the date of enactment of this division.

That means the award to SpaceX may not be changed or rescinded in order to comply with the requirement that there be at least two contractors.

SpaceX is not out of the woods entirely since GAO still must rule on the protests filed by Blue Origin and Dynetics, but it does mean enactment of this legislation would not affect the contract.

Whether or when the bill becomes law is another question.  S. 1260 is just beginning its journey through the Senate. Sponsored by Senate Majority Leader Chuck Schumer (D-NY), it has a better than usual chance of passage, but nothing is certain and there could be many changes.

The bill has changed dramatically already since it was introduced. The Senate Commerce Committee added a number of measures, including the NASA Authorization Act.  More have been added since. Now 1,445 pages long, it is the proverbial “Christmas tree” with a Table of Contents that alone is 15 pages. There are a total of six divisions now. Division B is the Endless Frontier Act and the SPACE Act (Sen. Wicker’s bill dealing with space situational awareness) and the NASA Authorization Act are Title VI of that division.

Whatever passes the Senate must also pass the House. The Endless Frontier Act began as legislation to augment the work of the National Science Foundation. The House has its own bill for that (H.R. 2225), which does not include all the rest of what is now in the Senate version.

Rep. Don Beyer (D-VA), chairman of the space subcommittee of the House Science, Space, and Technology Committee, reiterated yesterday at a hearing on NASA’s earth science and climate change programs that he hopes to take up a NASA authorization bill later this year, but there does not appear to be any urgency to it.

In any case, authorization bills set policy, but do not provide funding. The Senate bill now recommends $10 billion for HLS over five years (FY2021-2025) instead of over six years (FY2021-2026) as approved by committee, but that still is merely a recommendation. Only appropriations bills actually provide money to agencies. NASA chose one contractor instead of two because Congress appropriated only 25 percent of the funding requested for HLS in FY2021. Unless Congress comes up with the money to pay for two contractors, it is not clear how NASA would implement the Senate language if it did become law.